Editor's Column: The Right to Be

It’s been a confusing time for sex. And that’s not me oversharing. But with the definitions of ‘sex’, ‘gender’ and indeed that of ‘woman’ itself now being battled out in court, we have only just traversed the outer edges of a toxic, but so far fringe, debate.

And as it has set us on a course for an argument fallaciously framed as being either pro- or anti-trans, we are about to see it get even more febrile as it breaks into the mainstream, with the Scottish Government making the case for the reform of the Gender Recognition Act.

For some of us, there has been a long and painful rehearsal to get to this point. Four years of deep introspection, emotional turmoil and complex argument that has already torn natural allies apart.

A time when invisible walls between longstanding contacts have been erected. When well-established relationships have become fractured. When reputations have been trashed, and livelihoods threatened.

When damaging and vexatious complaints have been made. When some of the most powerful legislators in the land have spoken behind closed doors but publicly failed to stand up for what they believed in or to defend those they should have stood squarely behind. A time of being ghosted by previously close contacts. And a time when you could start to feel a chill.

A dark, regressive time when arguments about whether biology even mattered or that a feeling of ‘just being’ should take precedence over a material reality.

A time when dependable champions for equality, who would normally argue from a platform of intellect and sense, turned into myopic bullies who shut down legitimate argument with a stinging rebuke of ‘transphobe’, and refused to engage in a challenge.

A time of deep contradictions. A time when, as a society, we woke up to the hellish lived experience of women and girls and their exhausting daily battle to keep safe from men. But at the same time, argued for the lifting of what meagre sex-based safeguards already existed. 

A time when we were forced to question the very existence of biology, encouraged to use gender neutral terms around uniquely female specific practices like breast feeding, mothering and menstruation. And yet we ignored the disconnect of that argument when condemning practices like female genital mutilation, sex trafficking and forced marriage, where being female was the only determining factor for the victims.

A time when the UK’s statutory regulator, the Equality and Human Rights Commission, could be branded a ‘hate group’ and reported to the United Nations on the basis of “revelations, if true” that it had prepared guidance that could prevent trans people from using single-sex spaces. Something which it categorically denied. But where the “if true” carried a lot of heavy lifting, even among Scottish Government ministers.

And when Police Scotland had to review a policy that would potentially allow male rapists to identify as women. 

A time, to be frank, when fantasy has been indulged. Disinformation bandied around. Statistics manipulated and mangled. Truth stretched. And when crass comparisons have been made by high-profile politicians between people who are ‘intersex’, which they, incidentally, failed to properly define, with people who have red hair, to simply make a crass point about percentages and the right of ‘ginger people’ to exist. 

This is no time for cheap laughs.

A time when, bizarrely, even some trans people find themselves labelled transphobic for refusing to bow down to a gender ideology that says you can actually physically change your sex, when you can’t.

And a time when concerns expressed by women were extraordinarily dismissed as ‘not valid’ by the First Minister. And their cries of protest were pronounced as evidence of radicalisation and ignorance.

We are still to be told how expanding the pool of people that can legally declare themselves to be women, which is what the government will propose by removing any medical gatekeeping to a Gender Recognition Certificate, cannot impinge on the rights currently held by the women they were designed for under the UK Equality Act. But that will be for the First Minister to explain.

Arguably, there has never been a more divisive piece of legislation put before the Scottish Parliament. The rows over Section 28 (2a in Scotland) and the debates around equal marriage just do not compare. 

And the narrative that says they are the same is a false one. An Aunt Sally constructed to silence critics by dint of an association with what was once a torrid time.

But embracing the rights of a human being to love who they want, to marry who they want, and to have those same legal protections as anyone else, gay or straight, is a fundamental of equality. And ones which trans people already have. 

Women in Scotland are seeing their rights eroded while at the same time being told that ‘trans lives are not up for debate’ when theirs already are.

I know no one that doesn’t agree that a process that allows someone to legally identify in the gender in which they wish to live their lives could be done with more respect, dignity and support. Indeed, polling shows that to be the case. So, the question that hangs is why, when there is broad consensus for reform, has self-ID, which does not get the same public support, become such a totemic issue for the Scottish Government?

It’s not even the most pressing of demands for trans people. Better health provision is.

And I get that the First Minister wants another first. She wants Scotland to be seen as a beacon of truly progressive policies. And if not the first in the world, then at least the first across these islands. But does she really want that to happen at the expense of women’s rights, of increased division, and of good law?

Call me cynical, but in the same way that the Scottish Parliament was found to have breached its legal powers by the Supreme Court at the end of last year, for attempting to incorporate into Scots law the statutes within the United Nations Convention on the Rights of the Child, the First Minister, as she did then around children’s rights, could always then blame Westminster for not allowing her to advance the cause of equality for trans people. It’s a thought.